When Washington Redskins owner Dan Snyder moved his defamation suit against the Washington City Paper from New York to Washington late last month, the newspaper’s attorneys cried SLAPP. Strategic lawsuit aimed at public participation, that is.
First coined by University of Denver law professors in the late 1980s, SLAPPs are defined as lawsuits brought with the express purpose of chilling protected speech. According to anti-SLAPP advocates, such suits are a form of financial bullying, designed to drain a defendant’s pocketbook until they cease the speech in question.
The idea quickly gained legitimacy, and state legislatures began passing anti-SLAPP laws in the early 1990s. The new laws provided immediate procedural remedies for defendants who believed they were the target of a SLAPP.
In November, Washington became the latest jurisdiction to adopt an anti-SLAPP law; the statute went into effect on March 31.
Attorneys who specialize in speech cases say the law is one of the strongest in the country. The statute has already been invoked in at least one high-profile case — a defamation suit brought by former U.S. Department of Agriculture official Shirley Sherrod against conservative blogger Andrew Breitbart.
And when Snyder filed his lawsuit against the City Paper in District of Columbia Superior Court on April 26, attorneys for the paper told The National Law Journal at the time that they were likely to move for dismissal under the new law.
Laura Handman, a partner in the Washington office of Davis Wright Tremaine and co-chairwoman of the firm’s appellate practice, compared D.C.’s law to California’s statute, long considered the national benchmark for anti-SLAPP legislation. Noting that California’s 1992 law has become a fixture in speech cases in that state, she said, “I expect the same in D.C., quite frankly. I think it’s going to have broad application.”
To date, 29 states, along with the District of Columbia and Guam, have either passed an anti-SLAPP law or provided some other judicial remedy. Although SLAPP statutes date back to the early 1990s, Paul Alan Levy, an attorney with the Public Citizen Litigation Group, a Washington-based public interest law firm, said the rise in Web-based commentary — and the lawsuits that increasingly ensue — is motivating more states to take action. “Companies and political figures who weren’t used to being criticized have confronted the brave new world of the Internet by trying to shut people up,” he said.
A federal anti-SLAPP law has been in the works for years but has failed to gain traction, said Peter Kurdock, legislative director of the Public Participation Project, which is advocating for the federal statute. As more jurisdictions pass anti-SLAPP laws with varying scope and applicability, he said, it raises the risk of forum-shopping. “They’re very different in the levels of protection they provide. It leads to a lot of uncertainty,” Kurdock said.
Washington’s law is the brainchild of D.C. Councilwoman Mary Cheh. Cheh, an attorney, teaches at George Washington University Law School; her areas of expertise include constitutional law. “I had been aware of the…impact that some of these lawsuits were having on people in terms of freedom of expression,” Cheh said. “Using law to bully people has always been deeply offensive to me.”
According to Cheh’s staff, the councilwoman relied heavily on California case law when drafting the bill. The bill moved through without opposition and passed unanimously on Nov. 23.
Under the law, a defendant has 45 days to file a special motion to dismiss after being served with what he or she believes is a SLAPP. Once the defendant makes a prima facie claim that the speech in question is protected, the law offers the plaintiff an opportunity to respond, but it’s not required. Discovery is stayed pending a decision. “You have to have a treasure to defend these cases. This allows you to bring it to a head early,” Cheh said.
The law originally included a provision allowing for an interlocutory appeal if the motion to dismiss was denied, but Councilman Phil Mendelson, who heads the Committee on the Judiciary, said it ran afoul of the city’s ability to regulate courts under the D.C. Home Rule Act. Mendelson co-introduced the bill with Cheh.
Kevin Goldberg, an attorney at Arlington, Va.’s Fletcher, Heald & Hildreth, specializes in First Amendment cases. He said Washington’s law carries a low threshold of proof for the defendant and quickly shifts the burden to the plaintiff to prove that the case has merit.
“D.C. has a pretty broad law. It covers just about any statement on an issue of public interest communicated to the public,” he said.
Handman said another strong element of the new law is that the courts are given discretion to award attorney fees and costs to defendants if they prevail on the motion.
“California has seen a reduction in the number of libel cases…because you get attorney’s fees if you’re successful. That puts some real consequences in bringing a libel action,” she said.
Michael Rothberg of Washington’s Dow Lohnes, who specializes in media law cases, said that the District’s anti-SLAPP law is unique in that it provides anonymous defendants with a special motion to quash if a SLAPP suit attempts to uncover their identity. “With the explosion of the Internet, there are many more of these sorts of lawsuits,” he said. “[Anonymous posters] feel empowered…to say things they wouldn’t otherwise say. They often don’t realize that it is possible for their identity to be uncovered.”
Data on how many motions for dismissal have been filed under the law since it went into effect six weeks ago are unavailable, according to administrators with the U.S. District Court for the District of Columbia and D.C. Superior Court.
Several attorneys say they expect to see a motion to dismiss brought under the new law in Snyder’s lawsuit. Snyder is suing the paper and one of its reporters over an allegedly libelous article. No anti-SLAPP motion has been filed to date, but Snyder’s attorneys are on alert.
“It would be ill-advised to file that motion. Our claims certainly have merit,” said Jill Basinger, part of Snyder’s legal team from Los Angeles’ Glaser, Weil, Fink, Jacobs, Howard, Avchen & Shapiro. “Anti-SLAPP laws have an important place, but I think they have no place in this particular instance.”
Seth Berlin, a partner at Levine Sullivan Koch & Schulz in Washington who is representing City Paper, said a SLAPP motion is “certainly” something that will be under consideration.
“The SLAPP statute is obviously a powerful tool in cases like this,” he said.
The paper initially had been represented by Cahill Gordon & Reindel partner Floyd Abrams when the suit was in New York; when the suit was refiled in Washington, Abrams had pointed to the law as a potential defense.
Conservative blogger Breitbart filed a motion to dismiss Sherrod’s lawsuit as a SLAPP on April 18. Sherrod is suing Breitbart in Washington federal court over a video and other materials he posted online that she claims were deceptively edited to accuse her of racism. Sherrod’s response is due on May 19.
Lawsuits involving big-name parties may get the attention, but Ellen Opper-Weiner, a Capitol Hill resident and Bethesda, Md.-based solo practitioner, said the law is especially needed to protect the speech of individuals with little or no experience in the courts.
Opper-Weiner was among several Washington residents named in a 2001 lawsuit over their public opposition to a proposed development in their community. She said that when the 2001 suit was served, one of her neighbors expressed concern that he would need to sell his house to pay legal bills. The suit was ultimately dismissed.
“It’s the kind of thing that innocent people, laypeople in particular, should not have to be subjected to,” she said.
Zoe Tillman can be contacted at email@example.com.